USA v. Charles Johnson

Filing

UNPUBLISHED OPINION ORDER FILED. [16-50673 Dismissed as Frivolous] Judge: EGJ, Judge: WED, Judge: LHS. Mandate pull date is 01/05/2017; denying motion for bail pending appeal filed by Appellant Mr. Charles Edward Johnson [8353490-2]; denying motion to proceed IFP filed by Appellant Mr. Charles Edward Johnson [8276966-2] [16-50673]

Case: 16-50673

Document: 00513799700

Page: 1

Date Filed: 12/15/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 16-50673
Summary Calendar

FILED
December 15, 2016
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CHARLES EDWARD JOHNSON,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:07-CR-97-1
Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Charles Edward Johnson, federal prisoner # 83808-180, seeks to proceed
in forma pauperis (IFP) in his appeal from the district court’s denial of his May
2016 18 U.S.C. § 3582(c)(2) motion to reduce his sentence of 365 months of
imprisonment, imposed following his conviction of possession with intent to
distribute at least five grams of a mixture or substance containing cocaine base
(“crack” cocaine) within 1000 feet of a public elementary school. See 21 U.S.C.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

Case: 16-50673

Document: 00513799700

Page: 2

Date Filed: 12/15/2016

No. 16-50673
§ 841(a)(1), (b)(1)(B)(iii) (2006); 21 U.S.C. § 860(a). By moving to proceed IFP,
Johnson is challenging the district court’s certification decision that his appeal
was not taken in good faith because it is frivolous. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997).
Johnson erroneously contends that Amendment 591 to the Sentencing
Guidelines prohibits judicial fact-finding regarding the quantity of drugs
attributable to a defendant.

Based on his incorrect understanding of the

amendment, Johnson avers that he had the right not to be sentenced based on
“false or unreliable information” as to the drug quantity involved in the offense.
Amendment 591, effective November 1, 2000, clarified that, “in order for
enhanced penalties in § 2D1.2 to apply, the defendant must be convicted of an
offense referenced to § 2D1.2, rather than simply have engaged in conduct
described by that guideline.” U.S.S.G. App. C, Amendment 591 (Nov. 2000).
Amendment 591 applies retroactively. U.S.S.G. § 1B1.10(c), p.s. (Nov. 2000).
The amendment did not lower Johnson’s sentencing range because he was, in
fact, “convicted of a statutory violation of drug trafficking in a protected
location,” specifically, § 860.

See U.S.S.G. App. C, Amendment 591 (Nov.

2000); see also § 2D1.2 (2001) & comment. Because the amendment did not
lower Johnson’s sentencing range, he was not eligible for a sentence reduction
under Amendment 591 and his appeal presents no nonfrivolous issue. See
§ 1B1.10(a); Dillon v. United States, 560 U.S. 817, 826 (2010); Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983).
IT IS ORDERED that Johnson’s request for leave to proceed IFP is
DENIED, and his appeal is DISMISSED AS FRIVOLOUS. See Baugh, 117
F.3d at 202 & n.24; 5TH CIR. R. 42.2. His motion for release on bail pending
appeal and all other outstanding motions are likewise DENIED.

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